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DECEMBER 1, 2000
Chief Justice William H. Rehnquist
Justice Anthony M. Kennedy
Justice Sandra Day O'Connor
Justice Antonin Scalia
Justice Clarence Thomas
Justice John Paul Stevens
Justice David H. Souter
Justice Ruth Bader Ginsberg
Justice Stephen G. Breyer
Dale Bosley, Marshal of the Supreme Court
Theodore Olson, Bush Campaign Attorney
Joseph P. Klock, Attorney for the Florida Secretary of State
Paul Hancock, Attorney for the Florida Attorney General
Laurence Tribe, Gore Campaign Attorney
BOSLEY: The honorable, the chief justice and the associate justices of the Supreme Court of the United States. All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court.
REHNQUIST: We'll hear argument this morning in Number 00836, George W. Bush v. The Palm Beach County Canvassing Board.
OLSON: And may it please the court. Two weeks after the November 7 president election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7.
These laws have been formulated by the Florida legislature pursuant to an expressed delegation of authority to it by the United States Constitution.
The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code. That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies.
O'CONNOR: Well, Mr. Olson, isn't Section 5 sort of a safe harbor provision for states? And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?
OLSON: We do, Justice O'Connor. It is a safe harbor, but it's more than that. And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth...
O'CONNOR: Yes, but I would have thought it was a section designed in the case some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don't quite understand how it would be independently enforceable.
OLSON: That's why I mentioned the context in which that section was adopted, in light of the extreme controversy that was faced by this country as a result of the 1876 election, and as this court knows, that election was very close. It led to controversy, contests, discord. Congress was very much concerned about the possibility of that happening again, and what...
KENNEDY: What they did was -- and it's typical of the grant and aid programs, they said, if you run a clean shop down there, we'll give you a bonus. And if you don't, well, you take your chances with everybody else.
OLSON: Justice Kennedy, I submit that it is much like a compact that Congress is offering the form of Section 5. Yes, if you do these things, certain things will happen. But among these things, what Congress wanted to accomplish with Section 5 is not only to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit...
KENNEDY: Well, what is there, in the opinion of the Supreme Court of Florida, that indicates that it relied on this federal statute, in that reasoning for its decision and in its judgment.
OLSON: Well, I think the fact is that it did not. What it did was it disregarded the compact when the state adopted a code of ethics -- a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876...
KENNEDY: Well, but we're looking for a federal issue. And I thought that you might have argued that the secretary of state was instructed by the Supreme Court not to jeopardize the state's chances, and it cited 3 U.S.C. Sections 1 through 10.
And so if the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.
OLSON: Well, I certainly agree that it mentioned those provisions. I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states, to the voters in that state, and to the people running for office in that state. That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress, but we will not have the controversy, dispute and chaos that's been taking place in Florida since then.
SCALIA: Mr. Olson, suppose a less controversial federal benefit scheme. Let's say the scheme that says states can get highway funds if they hold their highway speeds to a certain level, all right?
SCALIA: And suppose you have a state Supreme Court that, in your view, unreasonably interprets a state statute as not holding the highway speed to the level required in order to get the benefit of that safe harbor. Would you think that that raises a federal question and that you could appeal a state court decision here, because it deprived the state of the benefit of the highway fund?
OLSON: No, I don't think so.
SCALIA: Why is this any different?
OLSON: This is a great deal different, because this is the -- first of all, Article II of the Constitution, which vests authority to establish the rules exclusively in the legislatures of the state, tie in with Section 5. Secondly, as this court has stated...
SCALIA: Well, let's just talk about Section 5. I mean, the constitutional questions and other -- why is Section 5, in that regard, any different from the highway funding?
OLSON: I think it can't be divorced from Article II of the Constitution, because it's a part of a plan for the vesting in the legislatures of a state. And Section 5 implements Article II, in the sense that it provides a benefit, not just to the state, but to the voters of this county.
KENNEDY: But just talk about the statutory issue. I assume that if we worked long enough with Justice Scalia's hypothetical, we could find a case where a court adjudicated with reference to the federal principle and got the federal principle wrong. Did Indiana v. -- that kind of thing. Did that happen here?
OLSON: Well, I think that the state did not pay -- the state Supreme Court did not pay much attention to the federal statute. It was obviously aware of it. It did get the federal...
KENNEDY: Well, then there's no federal constitutional issue here.
OLSON: Well, there is a federal...
KENNEDY: I mean statutory.
OLSON: Well, we believe that there is, Justice Kennedy, because, although the state recognized it, it blew right past it. The state legislature adopted the code that the Section 5 of Article 3 -- of Title 3 invited it to do. The state Supreme Court, which had no right under the Constitution, but I can't divorce the constitutional provision from Section 5, then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen.
And so what the state Supreme Court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida...
REHNQUIST: Mr. Olson, do you think that Congress, when it passed 3 U.S.C., intended that there would be any judicial involvement with it? I mean, it seems to me it can just as easily be read as a direction to Congress saying what we're going to do when these electoral votes are presented to us for counting.
OLSON: I think that it wasn't directed to Congress, but it seems to me that in the context in which it was adopted and the promise that it afforded, that the conclusive effect would be given to the state's selection of electors, that it is a somewhat empty remedy, and it doesn't accomplish Congress' objectives if it cannot be enforced when an agency of the state government steps in, as the Florida Supreme Court did here, and overturn the plan by which the Florida legislature carefully set forth a program so that so that disputes could be resolved, and we wouldn't have the controversy, conflict and chaos that we submit exists today in Florida.
STEVENS: Mr. Olson, your submission is based on the premise that the Florida court overturned something that the statute had done. Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?
OLSON: Justice Stevens, I don't think that in this case that's even remotely arguable. What the state Supreme Court did is take a set of timetables, a set of provisions that...
STEVENS: Yes, and the first one was the mandatory -- is it your view still that the "shall" date controls, in all respect?
OLSON: No, not necessarily. The two provisions are...
STEVENS: 111 and 112.
OLSON: .... Section 102.111 and 102.112.
OLSON: 111 contains the "shall" date; 102 contains the "may" date.
OLSON: Both of those statutes, both of those provisions say that the returns "must be" or "shall be"...
OLSON: ... filed by a certain deadline. The "shall" and the "may" provisions simply relate to the possible remedy. We submit that under either interpretation, the secretary of state of Florida either must or shall ignore those returns or may set those aside in her discretion.
STEVENS: Does that mean that if there were an act of God that prevented the returns from being filed, that she would have discretion either to accept or reject the returns?
OLSON: Yes. I believe...
STEVENS: She would have that discretion? Would she be compelled, in that event, to accept the returns?
OLSON: I don't think so. She took the position...
STEVENS: She has the total discretion, either to accept or reject?
STEVENS: Is there any circumstance in which she would be compelled to accept a late return?
OLSON: I don't know of any. I haven't thought of any, Justice Stevens.
STEVENS: Well, you're arguing, in effect, that it's a mandatory deadline. I wonder if you really mean it's mandatory.
OLSON: Well, the problem is that -- what we're saying is that either it's mandatory, in which case she could not accept them...
STEVENS: But you don't know whether it's mandatory or not?
OLSON: Well, the Florida Supreme Court and -- what the circuit court did in that case, it said that it wasn't -- we'll accept this, for purposes of this argument, that it wasn't...
STEVENS: Yes, but one of the things that's of interest to me is the extent to which you say there was a change in the law. It seems to me that, in order to answer that question, you have to know what your view of the law was before this all happened.
OLSON: Well, I think that we can answer that this way, is that whether it was "shall" ignore or "may" ignore, it was not "must accept."
STEVENS: Under any circumstance, it was not "must"?
OLSON: Under no circumstances was it "must accept." Now the second...
STEVENS: Even an act of God or fraud?
OLSON: I don't believe so.
BREYER: Isn't the law in Florida like as in most states and in the federal government that when an official has discretion, may accept or may not accept, that has to be exercised within the limits of reason?
BREYER: Then, isn't it possible that when the court says, "she must accept under certain circumstances," what they mean is outside those circumstances, given the circumstances here, it would be unreasonable to refuse?
OLSON: Well, what the court did was so constrain those circumstances, to virtually make them nonexistent...
BREYER: All right, so then what you're arguing about is a determination by the state court of Florida as to what the circumstances are under state law, where the action of a state official would or would not be reasonable.
OLSON: I think that -- yes, but I that it has to be looked at in the context in which that was done. When the state Supreme Court so constrained and says in its opinion she'll accept these late returns until 5 p.m. on November 26, and in the context there was no discretion left for the secretary of state at all...
GINSBURG: Mr. Olson, may I ask -- of course, you've been skipping over what I thought was a key piece of the Florida legislation. The Florida Supreme Court said there's the deadline and that conflicts with another provision of this law, the provision that says there shall be, under certain circumstances, recounts. And, then, there's a rather detailed description of the process that's necessary. The time line from when you can ask a recount is on the sixth day.
OLSON: Up to.
GINSBURG: Yes, up to.
GINSBURG: And if it would be impossible in a populous county to, in one day, do what the statute instructs must be done, then there's a recount.
The Florida Supreme Court said, it said right in its opinion, there's two conflicts, and the first one they mention, straight out on page 21-A of your appendix, that there has to be a reconciliation between this "Yes, there can be recounts, and yes, there's is a deadline." So there are trying to reconcile two provisions.
OLSON: The first part of the recount provision, to which your referring, Justice Ginsburg, says, "may conduct a recount." Under certain circumstances, after the sampling part of that process is taken, if it's taken in the county canvassing board's discretion, then under certain circumstances it's supposed to go forward with a more fulsome process.
But the legislature, being fully aware of the recount provisions and the importance of -- this ties in with the protest period for the election, which overlaps the recount provisions and the contest provisions for the election, and the fact that all of this has to be done in the context of a presidential election. Under any other kind of an election, these things wouldn't be nearly as important, but we have very important timetables.
And as this court has said, a presidential election is so important to the rest of the nation, and there's such a high federal interest in accomplishing these things in the right way, what the Florida legislature did is balance the protest period, the recount period, with the contest period, and state that there shall be certain deadlines before which certain things need to be done and after which.
So what those two statutes say is that there may be a recount, but that there shall be compliance with the time deadline. It also says that...
GINSBURG: But that's something that one can certainly argue. My problem is one could also argue what the Florida Supreme Court said.
And I do not know of any case where we have impugned a state supreme court the way you are doing in this case. I mean, in case after case, we have said we owe the highest respect to what the state says, state supreme court says, is the state's law and...
OLSON: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election and it is in the context of federal rights. This court has, in the areas in which we've described in our brief, undertaken to review the meaning and effect of a state supreme court or a state court decision under certain circumstances. We submit this is one.
What the Florida...
GINSBURG: But have said in even the very cases that you cite, as I checked them, that we owe the highest respect to the state court when it says what the state law is.
OLSON: Yes, but then the court has also said, then we go on to see the extent to which what the state court did, as we cited in the Lindsey case, for example, in the ex post facto context, we go on to see what the import of that is in connection with the federal right.
I would emphasize that what the Florida Supreme Court did is basically essentially say, "We're rewriting the statute. We're changing it."
KENNEDY: Did the secretary have any flexibility to accommodate the statute to the exigencies of the presidential election?
OLSON: Well, the secretary...
KENNEDY: The secretary of state.
OLSON: The secretary of state did. It doesn't -- she doesn't much anymore, because what has happened -- and I'd like to finish that one point, that the Florida Supreme Court said, "We are not going to be bound by technical statutory requirements," or what the Supreme Court called "hypertechnical statutory requirements. "Instead, we are going to resort to the will of the people, the will of the electorate, the will of the voters," so to speak, "and we are going to -- because we can't rewrite the statute, but we are going to partially rewrite the statute. We are going to resort to our equitable power."
And among the things that the court did -- and there are range of them, as I have indicate -- they took the discretion of the secretary and instructed her to accept these manual recount returns...
STEVENS: Well, Mr. Wilson, on the equitable powers, they were doing that in setting a new deadline, and I don't think you would argue the case would have been more acceptable if there had been no deadline.
OLSON: No, it wouldn't have been. But what...
STEVENS: And on the fight between "may" and "shall," they relied on four traditional canons of statutory construction and not equity at all.
OLSON: They recited four canons of statutory construction, Justice Stevens, but when they said they used those canons of statutory construction to say that the words "may" and "shall" mean "shall not," that is not a reasonable exercise of statutory construction.
I think it's relatively obvious that what the Supreme Court did is exactly what Section 5 of Article III intends not to happen, change the rules...
STEVENS: I don't read their opinion that way, Mr. Olson. It seems to me that the portion of their opinion dealing with statutory construction ends with the conclusion that the secretary has discretion. The portion of the opinion employing the canons of construction does not place any limits upon the secretary's discretion.
OLSON: Well, yes, but -- I agree with that up to a point, but then it says -- but then it says that she must accept these returns that are after the deadline...
SCALIA: That was not on the basis of any canons of statutory construction. That was on the basis of the state's constitution.
OLSON: Well, that's right. So there was both going on. And what the court was bound and determined to do was to get to a consequence that the court determined was consistent with the will of the people, irrespective of what the statute said.
GINSBURG: Mr. Olson, would you agree that, when we read a state court decision, we should read it in the light most favorable to the integrity of the state supreme court? That if there are two possible readings, one that would impute to that court injudicial behavior, lack of integrity, indeed, dishonesty, and the other that would read the opinion to say we think this court is attempting to construe the state law but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are?
OLSON: I would like to answer that in two ways. In the first place, I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court. What we're saying, that it was acting far outside the scope of its authority in connection with an exercise of power that is vested by the Constitution of the United States...
GINSBURG: But if it tells us -- if it tells us, "We see these two provisions in conflict, they need to be reconciled"?
OLSON: But under almost any other circumstances, yes, Justice Ginsburg, but in this context -- in this context we're talking about a federal right, a federal constitutional right, and the rights of individual citizens under the Constitution.
OLSON: And so, therefore, this court has a greater responsibility...
O'CONNOR: Mr. Olson, I'd like to get focused a little more on this same area. If it were purely a matter of state law, I suppose we normally would leave it alone, where the state Supreme Court found it, and so you probably have to persuade us there's some issue of federal law here, otherwise why are we acting.
O'CONNOR: And are you relying in that regard on Title 2 -- I mean, would you like to -- Article II -- would you like to characterize the federal issue...
O'CONNOR: ... that you think governs this?
OLSON: ... we are very definitely relying on Article II of the Constitution. The framers of the Constitution debated long and hard -- it was one of the longest debates that took place during the formation of the Constitution. Where should this power be lodged in the federal legislature, in the state legislature and at the ballot booth or what?
The one thing that was discussed and rejected by virtually everyone is that the power to select the manner in which electors would be appointed would be in the state judiciary. And we, quote -- in the state judiciary. That was rejected.
The notion that it would be vested in the state judiciary was something that was rejected. And what the framers decided to do is to vest it in the state legislature and did it -- vested that authority under Article II, not just in the state...
KENNEDY: ... legislature could vest it in the judiciary if it wanted, as I read the McPherson case. And here they've done something less. The state judiciary said, "We're going to invoke the ordinary election procedures," which, you know, warts and all, it involves some interpretation by the courts and contest proceedings, et cetera.
OLSON: Well, it is -- yes, it said that, Justice Kennedy, but what it did was supplant a set of rules enacted before the election to govern the election for a set of rules made up after the election.
SOUTER: All right, Mr. Olson, let's assume that it did that, for the sake of argument. I want to go back to the issue that the chief justice raised a little while ago. And I'd like you to comment on this line of reasoning. Section 5, Congress in the statute, seems to have gone to great lengths to provide what to do in the situation that you are describing, accepting your view of the case. Section 5, it says: If you do certain things within certain times, the conclusion that you draw is going to be conclusive upon the congress.
And in Section 15, it sets out, in fact, an elaborate set of contingencies about what the congress is supposed to do and can do if there is a dispute as to whether a given set of procedures in the state have conformed to Section 5.
SOUTER: Section 15 refers to regularity; it refers to legality and illegality. And it looks to me as though, at least at this stage of the proceedings, Congress has said, if there is a question about whether this "if then" provision in Section 5 construing Article II has been satisfied, then this is the decisional tree for the Congress to follow in deciding what to do about it and in resolving challenges.
And it looks to me as though, at this stage of the game, the statute has committed the determination of the issues that you raise and the consequences to follow from them to the Congress. Why should the court -- why should the federal judiciary be interfering in what seems to be a very carefully thought out scheme for determining what happens if you are right?
OLSON: Because I submit that that writes Section 5 essentially out of existence if an agency of state government -- if a state...
SOUTER: No, it doesn't write it out of existence. It provides in Section 15 what happens if the state agency does what you say it did.
OLSON: If the state agency -- if the state legislature, empowered by Article II of the Constitution, does what it is invited to do by Section 5, and then another agency of state government -- in this case, the state Supreme Court -- comes along and upsets that scheme, yes, you have ultimate resort to the resolution of the dispute under Sections 15 of Title 3, but that's precisely...
SOUTER: Well, you say you have ultimate resort, but that begs the question. That seems to be precisely the resort that Congress has provided.
OLSON: Well, I'm not making myself clear, I think, is that the importance of Section 5 was to invite the state to do things that would avoid the chaos and the conflict and the controversy and the unsettled situation that this country faced in 1876.
SCALIA: Mr. Olson, did Section 15 exist when McPherson was decided?
OLSON: I don't know, Justice Scalia. I don't know the answer to that, when it was adopted. I can't recall whether it was a part of the 1887 electoral count statute or not. I can probably answer that...
SCALIA: Well, that would make a difference, wouldn't it?
OLSON: Well, it seems to me it wouldn't make a difference because of this. It might -- yes, it certainly might make a difference one way, but it still wouldn't make a difference, because our concept here, and I think it's quite a rational and actually the only explanation for how you can put these provisions together, Article II and Section 5, and Congress' desire to avoid the very controversy, chaos, conflict, which even...
SCALIA: Well, but Section 15 assumes that there is controversy and chaos.
OLSON: Yes. And...
SCALIA: Section 15 isn't providing for challenges, except in situations perhaps exactly like this one.
OLSON: But that's what the country -- what essentially Section 15, although it modifies it and structures it somewhat, was still the situation that Congress was facing in 1876 when it was dealing with the Hayes-Tilden election.
SOUTER: Right. But the Congress...
OLSON: And by the time it got there, there were dueling slates of electors. They were buying -- there were exchanges and a lot of things that everyone felt was very destructive to the country.
SOUTER: But Congress had to face the constitutional fact that, under Article II, it could not -- or its understanding was, certainly, that it could not mandate certain state procedures. Article II did say the legislature shall decide what they are.
SOUTER: So the most that Congress could do in providing for a more orderly resolution of what happened in Hayes-Tilden was to do what it did in Section 5, and that is to say: If you do certain things, you can depend upon the results, recognizing that the state might not do those things. And it then provided, or at least at the present time it is provided in Section 15, that if you don't do those things, there is a sequence of issues that can be raised to be decided by the Congress.
If Congress wanted this court to get into the issue at this stage, it seems passing strange to me that, despite all the elaborateness of Section 15, there wouldn't have been some mention of federal litigation proceeding the Section 15 preceding.
OLSON: I think it's a very important point, and let me make it, that Congress did say if you do these things, certain consequences will flow from it. Florida did these things. And we submit that there the courts are here to protect the benefit of the bargain that Florida made when it responded to that invitation...
SOUTER: Well, if...
OLSON: ... because...
SOUTER: We have to separate your statutory argument form your constitutional argument. To the extent that you're relying just on the Constitution, do you think that Congress could by Section 15 exclude the courts from adjudicating the constitutionality of what the state has done?
OLSON: No, I don't think so.
SCALIA: But it certainly could express its preference for a scheme whereby the initial litigation, if you will, at this level, would take place in the Congress. To acknowledge that is not to say that the issue is judicial or that this court has some how been necessarily excluded from the process for all time. It is simply to say that the first line of litigation at the federal level seems, under the statute, to be Congress and not the court.
Isn't that a fair reading of 15?
OLSON: That's not a fair reading of Section 5. And let me answer this question on it, I'd like with the court's permission to...
SCALIA: No, that...
OLSON: ... reserve the chance...
SCALIA: I don't think Section 5 goes to the issue. The question is whether it's a fair reading of Section 15.
OLSON: I don't think that they can be read in isolation. I think that Section 5 was designed to avoid the problem created by the controversy and having to resolve this in Congress, which is exactly what did happen in the 1876 and was a very unsatisfactory situation.
SOUTER: And in 1876, Congress did not have the rules with respect to conclusiveness that it now has under Section 5.
OLSON: That's right. And it put those rules with respect to conclusiveness into Section 5. The Florida legislature bought into that scheme. And now the Florida Supreme Court, which doesn't have any constitutional authority pursuant to Section 2 to do so, upset that scheme, deprived Florida of the benefit of doing exactly what Congress wanted to have happen under Section 5.
I would, with the court's permission, reserve the balance of the time.
REHNQUIST: Very well, Mr. Olson.
Mr. Klock, we'll hear from you.
KLOCK: Mr. Chief Justice, and may it please the court, our argument is simply addressed to issues having to do with Florida law and the point being raised by the secretary is this: that the law in the state of Florida on November 7 was changed by the Supreme Court of Florida's decision on November 21.
The secretary is not contesting the right of the Florida Supreme Court to change the law of Florida; she is simply pointing out that the law did change.
KENNEDY: Does the secretary maintain that, in some instances, she has a discretion that a court does not? Or can a court do whatever she might do under Florida law?
KLOCK: Under Florida law, she has certain discretion that I think a court probably does not have in the protest period, Justice Kennedy, and that would be that she had the discretion to decide whether or not returns could be permitted after that seventh day.
And, indeed, that's based on two things that we have in the record. One is an opinion that was issued by the Division of Elections that talks about the circumstances in which the secretary would exercise discretion. And the second is the letter that the secretary sent to the three or four canvassing boards that requested an extension of time after the 14th deadline had pacsed.
She sent the letter out. She said, "Please indicate to me whether or not you intend to file returns after the deadline, and, if you do, what the reasons are." She collected a set of criteria; she applied the criteria; and then sent a letter back.
And what she did, Justice Kennedy, in the case of the division's letter, the opinion which of course is binding under Florida law on elections officials who receive them -- the division had said that there were certain circumstances such as acts of God, hurricanes and that kind of thing where the discretion would be exercised.
When she came up with her additional reasons for considering whether or not she would exercise her discretion, she indicated a number of them, which were also contained within the record. It's at the joint appendix of 21.
KLOCK: She indicated where there was a result of voter fraud, where there's a substantial...
STEVENS: She said she would exercise her discretion. Did she say she would have to exercise her discretion in those conditions?
KLOCK: I think she would have to exercise her discretion, sir.
STEVENS: The court could compel her to?
KLOCK: Yes, sir.
STEVENS: Do you think that was clear before the opinion of the Supreme Court in this case?
KLOCK: Yes, sir.
STEVENS: Let me just ask one general question for you to comment on whether it's a change in the law. To what extent, in your view, did the Supreme Court of Florida consider itself bound by either prior precedent or the constitution of the state which preexisted?
KLOCK: In terms of handing down this decision?
STEVENS: In terms of the particular result reached in this case.
KLOCK: I believe the Supreme Court of Florida was looking at its law in terms of articulating the law that it wanted to have then and on a going-forward basis. I mean, what it did -- and obviously, since it's the -- it's the chief court of the state; it has the right to do whatever it wishes to do with respect to Florida law, only bound by what the separation of powers...
STEVENS: Do you think they thought their decision was dictated either by prior precedent or by the constitution of the state?
KLOCK: Your Honor, I don't know whether they thought that or not, but that's not what the opinion says. As a matter of fact, the opinion is pretty clear. They start out by talking about statutory construction, and they hinge everything on the use of the word "interpret," and then they sort of turn the word "interpret" to a use that it's not intended to be.
But then, when they get to the point of designing the rule of law they're going to go forward on, they don't talk about interpreting the statute. They then go and base it on principles of equity in the Florida constitution.
KLOCK: And, indeed, what they end up with, Your Honor, is this statement, with respect to the question that the secretary is left with, and that is this -- and it's on 35 of the joint appendix: "We conclude that, consistent with Florida's election scheme, the secretary may reject a board's" -- that's the canvassing board's -- "amended returns, only if the returns are submitted so late that their inclusion will preclude a candidate from contesting certification or preclude Florida voters from participating fully in the federal electoral process."
Your Honor, there's no way...
STEVENS: No, I understand. Your position is that was entirely new.
KLOCK: Yes, sir.
STEVENS: And I'm just wondering, therefore, your submission is that it was not dictated by the Constitution or by prior precedent?
KLOCK: No, Your Honor...
REHNQUIST: Well, I thought you said a moment ago that the court -- the Florida court did rely on their Florida constitution. There's a section of your opinion that's devoted to that.
KLOCK: This -- Your Honor, in devising the remedy, they refer to the Florida constitution, but the issue that we're here on, as I understand it, sir, is whether or not the law changed. There's no question that they have a right to do what they did. The only difference...
REHNQUIST: Perhaps another statement of the issue is to what extent did the Florida Supreme Court, in construing this statute, rely on more general provisions of the Florida constitution, which they cited in their opinion.
KLOCK: I think they did rely in creating the remedy on the Florida Constitution. I believe they created a right that had not previously been seen there, which they have a right to do.
But, Mr. Chief Justice, the issue again is whether or not the law that they articulated on November 21 is different than the law that existed on November 7, and how the secretary of state, in exercising her discretion, was to divine the standard that would be established on November 21.
SCALIA: Your position is, so long as it's different, it violates Section 5, and therefore we have a right to step in.
KLOCK: Well, Justice Scalia, we have not addressed the federal issues, because, I mean, we're in a situation where you have...
SCALIA: Well, this is a federal court...
KLOCK: I understand that. I apologize.
But we have the secretary of state here, we have the attorney general here, and the legislature has filed by amicus, and of course the state has not appeared. So it's a little unusual. We haven't addressed those issues. But to answer your question, yes, sir.
BREYER: Can you tell me, when this petition was filed here, the secretary had not certified anybody the winner.
BREYER: And now the secretary has certified a winner. And therefore, I guess, whether we win -- whether your side, the side your supporting, wins or loses, it doesn't change that. And I guess that's moot.
BREYER: But my question is, is there any respect in which this really makes a difference this case, how -- I'm thinking, if it does make a difference, numbers of vote, is that kind of thing right for us to decide now? How could it make a difference? What's the consequence of our going one way or the other now, in this case?
KLOCK: Your Honor, it makes an enormous difference. Because the relief that has been requested would be for the court to determine that the law in effect at the time of the election was that manual recounting of ballots would not be permitted to address voter error, which I think has been extensively...
BREYER: But we don't -- suppose they won, and the relief was -- suppose your side won, and the relief was, fine, it should have been certified on November 14 or 18 instead of November 26. Now, what's the consequence of that, just that? Forgetting what the reasoning is, is there a consequence that flows from that that is real, adverse, you know, significant, concrete, that we can predict now as opposed to speculating?
KLOCK: The only immediate result would be that you would have a margin that was instead of being 536 votes would be 900-and-some-odd votes, and it would only be added to as a result of whatever was added by the overseas ballots.
BREYER: And this case has said -- we've said a claim is not right if it rests upon contingent future events that may not occur as anticipated or, indeed, may not occur at all. And so what I wonder is, is this in this realm of speculation as to whether or not it will or will not make a difference to the outcome of the election?
KLOCK: It will make a difference to the outcome of the election because there is an ongoing contest which is interrelated and is involved in the Supreme Court's opinion.
KLOCK: And, of course, because the Supreme Court of Florida, in coming up with the remedy that they came up with, completely changed the period of time from a relatively short period of time, seven days for a protest, and a much longer period for a contest, we now have a situation where there's 19 days for the protest and 16 days for the contest.
SCALIA: Well, it's too late to lengthen the time for the contest. I mean, to the extent that they've shortened the contest time, you know, that's water over the dam by now, isn't it?
KLOCK: Yes, Justice Scalia.
But the issue, here -- I'm sorry.
SCALIA: Is it not the case that if the votes are, as they have been shown to be, under the Florida Supreme Court's opinion, the race is much closer, and, therefore, some counties under Florida law would conduct recounts that otherwise would not conduct recounts. Doesn't whether a recount is conducted depend upon how likely it is that the recount is going to change the outcome?
KLOCK: Your Honor, if the law is returned to the point it was on November 7, there is no right to a manual recount to correct voter error. And that will end the litigation that currently exists in the state of Florida, which were the opinions of the secretary of state's Division of Elections that were issued and also the state of the law as it existed at that point and time.
The record shows very clearly there is no dispute that there were any problems with voting machines or any of the tabulation problems with voting machines. It was simply when they went through the process of what is, Justice Ginsburg, a discretionary right to a manual recount, not a mandatory one.
When they went into that and did the test, each of those canvassing boards did not find any problem with a mechanical problem. It was simply a problem in terms of voter error. The secretary took the -- never mind.
REHNQUIST: Thank you, Mr. Klock.
Mr. Hancock, we'll hear from you.
HANCOCK: Mr. Chief Justice, and may it please the court. In accordance with Article II of the United States Constitution, the Florida legislature has directed the manner of selecting presidential electors in Florida. That manner is pursuant to a popular vote that's implemented pursuant to the general election laws of the state of Florida.
O'CONNOR: I guess, Article II permits the legislature, in general, to make the choice it could itself select the electors.
HANCOCK: Yes, Justice O'Connor, we agree with that.
In implementing the election law, each branch of the Florida government plays a role. For example, the executive branch of our government has not found itself bound by the technical -- hypertechnical requirements of the election law. An example of that is that the executive branch has implemented a rule -- not a law, but a rule -- that allows absentee ballots from overseas military voters that we receive up to 10 days after the close of the polls.
Under the law of the state of Florida, all absentee ballots have to be received by the time the polls close on Election Day.
KENNEDY: But in your brief you conclude that the Florida Supreme Court -- I think it's page 12 -- like any state court, exercises inherent equitable powers to remedy a threat to fundamental constitutional rights. And it rewrote the certification deadlines according to that power, did it not?
HANCOCK: The only -- yes, Justice Kennedy. The only equitable power exercised by the court was setting the deadline.
KENNEDY: Isn't that such an amorphous, general, abstract standard that it can't possibly be said to be a law that was enacted and in place at the time of the election?
HANCOCK: Now, the laws were enacted well before the election. What happened was that, in the court...
KENNEDY: Of course the Constitution is there before the election, the due process clause was before the election, but what we're talking about is having laws with sufficient specificity and stability that people can rely on them in advance and not have them changed after the fact.
And your brief makes it very clear that they exercised their inequitable powers to remedy a threat to fundamental constitutional rights and change the deadline accordingly. It seems to me that's no -- it's an enviable standard, something we probably all agree with in the end. But so far as the requisite specificity dissatisfied, 3 U.S.C., Section 5, I just don't see that it's there.
HANCOCK: The court had to do something, Justice Kennedy. It was faced with conflicts in Florida law. They had conflicting opinions from the Florida attorney general as to the meaning of the law and the secretary of state as to the meaning of the law. As a result of those...
KENNEDY: Maybe it had to do something, but did it comply with 3 U.S.C., Section 5?
HANCOCK: I submit, Justice Kennedy, that 3 U.S.C., Section 5, doesn't require the state to do anything. It merely says...
KENNEDY: But did it comply with that part of 3 U.S.C., Section 5, that requires that laws be enacted and in place prior to the election in order to get the safe harbor?
HANCOCK: Yes, it did. The laws were in place before the election, and those laws granted to the judiciary the...
O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification.
O'CONNOR: Right? And it was done by the court?
HANCOCK: Yes, it was done...
O'CONNOR: And the legislature had very clearly said, you know, seven days after, that's the date. And it just does look like a very dramatic change made by the Florida court. And I'm wondering if that is consistent, in fact, with the notion expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change?
HANCOCK: I agree that the date was implemented pursuant to the court's equitable powers. Other than that, it was a routine exercise in statutory construction. The court was faced with a situation, first of all, where because of conflicting advice, the counties had started and then stopped conducting manual recounts, because of advice from the secretary of the state, which the Supreme Court ultimately concluded to be erroneous.
SCALIA: And that advice was -- and this was really the beginning of all of the problems -- her advice was that the provision providing for recounts, manual recounts, not requiring them, but given as one of the options, only came into play when there was some defect in the machinery.
SCALIA: And it was not available for voter error; that is, for voters who didn't punch the cards the way they were supposed to. And your office came out with the opposite conclusion.
The secretary's brief contends that that had always been the rule in Florida. Is that the case? Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault? No problem with the machinery, it's working fine, but, you know, there were, what, pregnant chads, hanging chads, so forth.
HANCOCK: No, Justice.
SCALIA: Did it ever happen before...
HANCOCK: I'm not aware of it ever happening before. But I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter. And while the secretary of the state refers to it as voter error, when the ballot is punched, under the laws of the state of Florida as interpreted by the Supreme Court, that voter has cast a ballot, even if the chad did not...
KENNEDY: Excuse me. Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?
HANCOCK: Yes, I can't say ever, but I'd say on the case before the court, all that was before the court was ordinary statutory construction which must be -- the result of it, whether this court would agree with it or disagree with it, must be respected by this court. That's the very foundation of federalism.
GINSBURG: Mr. Hancock, are you relying on the Florida Supreme Court's statement, at least twice in its opinion -- now I looked at the page to which Mr. Klock referred, page 37-A -- it says for the second time that section -- the section governing manual recounts appears to conflict with the sections that set a deadline, and it's reconciling that conflict.
HANCOCK: Yes, that's...
GINSBURG: Whether it was wrong or right, that's what it said its mission was, and that's what it did.
HANCOCK: Yes. Both in words and in operation, the statutes could not work together because of the time for requesting manual recount, the extent of the job of manual recounting...
SCALIA: What is the section that requires manual recounts?
HANCOCK: It's 102 -- well, 102.166 authorizes manual recounts.
SCALIA: That's different from requiring.
HANCOCK: Yes. But once it starts, Justice Scalia, once it's authorized, if the initial sample recount shows an error that might affect the outcome of the election...
HANCOCK: ... the board is then required to, among other things, conduct a full manual recount.
SCALIA: No, it's required to do one of three things, one of which could be a manual recount.
SCALIA: It could decide to do one of the other two instead.
HANCOCK: Yes. The problem faced by the counties...
SCALIA: So there is -- I mean, the court says that there's a requirement of a manual recount, but I don't see anything in the text of the statute that requires a manual recount.
HANCOCK: The statute requires that the election officials attempt to discern the cause of the error. Here the cause of the error was that, in these counties, was that the machines were not able to read ballots.
HANCOCK: Ten thousand ballots in Palm Beach County, the machine did not read as including a vote for president. That was the issue, so that the solution to that was not the machines, even when they're operating properly, would not read these ballots. So what was left to the county canvassing board then was to do the full manual recount, and the language of that statute, again, says they "shall" do a full manual recount in those circumstances.
O'CONNOR: Well, it says that the board "may" authorize the manual recount. It doesn't require it. But if it does authorize it, then it tells them how to do it and says they shall appoint as many counting teams as necessary, presumably as necessary to do it within the time limit.
HANCOCK: Yes, Justice O'Connor, but, again, under the law these requests can be made up to the time of canvassing, that means up to six or seven days. And also, the number of ballots at issue here are between 650,000 in Palm Beach County, and also 900,000 -- up to 900,000 in Broward County.
SCALIA: Well, if that is a statutory problem, the court's resolution didn't really solve it, did it? Because even with her extended time period, the same statutory problem exists. There still isn't enough time, under the extended deadlines, for some of these counties that have an enormous number of votes to conduct a manual recount; isn't that right?
HANCOCK: Well, let me...
SCALIA: I mean, to resolve a supposed conflict in the statute in a manner that leaves in place the same problem that existed before seems to me not a real resolution of the statutory problem.
HANCOCK: Well, the Supreme Court tried to blend it all together to make it work, Justice Scalia. And, again, it came up with a solution.
HANCOCK: The secretary of state's argument here is based on -- the secretary of state herself recognized that she had the discretion under Florida law to accept returns filed outside of that seven-day deadline. A breakdown of the machines, in her view, would justify late returns. A failure of the machines to read ballots would not justify late-filed returns.
The Supreme Court said that the legal standard she was using was wrong. We submit that that decision of the Supreme Court is the law in the state of Florida.
REHNQUIST: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.
HANCOCK: Well, I will -- I don't need the extension time, Your Honor. If there's no other questions, I will stop. Thank you.
REHNQUIST: Thank you.
Mr. Tribe, we'll hear from you.
TRIBE: Mr. Chief Justice, and may it please the court, I think I would want to note at the outset that the alleged due process violation, which keeps popping up and then disappearing, and has, as far as I can tell, not appeared at the state Supreme Court, did make one appearance in the reply brief here, is really not before the court, and for understandable reasons. Because although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a, kind of, photo finish that leaves people unsure who won.
TRIBE: And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount, sometimes a manual recount, sometimes taking more time. It'd be rather like looking more closely at the film of the photo finish. It's nothing extraordinary, it's not like suddenly moving Heartbreak Hill or adding a mile or subtracting a mile from...
KENNEDY: You're saying, no important policy in 3 U.S.C., Section 5?
TRIBE: No, no.
KENNEDY: In fact, we change the rules after. It's not important in popular culture.
TRIBE: Certainly, not, Justice Kennedy. But I read U.S.C., Section 5 -- that is 3 U.S.C., Section 5 -- not as a requirement that, for example, one never add resources to checking how a particular ballot was cast.
If you look at the language, I think it's really much too casual to say other, that all of the laws must stay fixed in order to have the safe harbor apply -- those as I'll try to argue in a few minutes -- that's really not a question for this court, but rather for the Congress.
But the language of Section 5 is that -- and I'll just read what I think are the key words -- "if a state...
SOUTER: Can you tell us where you're reading from.
TRIBE: Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C., Section 5, not from any -- a page I can identify directly...
SOUTER: It's in the appendix to the petitioners brief, I'm sure, isn't it?
TRIBE: Yes, although I'm afraid I don't have it in front of me.
SOUTER: Page 3-A of the blue brief.
TRIBE: Thank you, Mr. Souter.
Page 3-A of the blue brief, I am reliably informed.
TRIBE: So, if any state...
REHNQUIST: It won't get you an extra two minutes.
TRIBE: Well, I tried, I tried.
TRIBE: "If any state shall have provided," and then it says, "by laws enacted prior to the day fixed for the appointment of the electors," a fancy way of saying Election Day, "for the final determination of any controversy or contest about the appointment of electors." And here's the key phrase, I think, "by judicial or other methods or procedures at least six days before the time fixed for the meeting of the electors," that means in our situation December 12, "then the final determination shall be conclusive and govern the counting in Congress."
Now, the question for Congress, I supposed, would be -- though I don't see how this court could get into that question at this stage -- but the question would be is a particular change extending a deadline for exiguous circumstances because a recount has been authorized a change in the judicial or methods of procedures for resolving the contest.
REHNQUIST: Let me ask you just a moment, you say you don't think this statute permits this court to get into the matter at this time. Are you suggesting there could be any judicial review of a decision by the Congress to count one set of electoral votes over...
TRIBE: No, I don't think so, Mr. Chief Justice. It's just that I don't trust my own imagination to have exhausted all possibilities. For example, in the case in I think it was 1890, in Fitzgerald v. Green, when this court held that only states can punish fraudulent voting for presidential electors, it got into the act sort of obliquely and at an angle, and that had a bearing on the question of how the presidential electoral slate might be composed, but it certainly didn't get into this.
KENNEDY: No, it certainly was quite different from...
KENNEDY: ... this hypothetical.
TRIBE: That's certainly right.
KENNEDY: And my point is that puts hydraulic pressure on your nonjusticiability argument and makes it a very, very important argument and a critical argument in this case.
TRIBE: Well, perhaps, Justice Kennedy, but I, frankly, can't see how it would affect the decision in this case. That is, after all, you have before you a judgment of the highest court of a state.
As Justice Ginsburg and others have suggested, it would ordinarily be the case, surely, that one would not go out of one's way to read the judgment as a breach of faith with the duties of trying to reconcile provisions that are intentioned.
O'CONNOR: Well, I guess in the area, though, of presidential electors, it could be that that court, as all courts would be, have to be informed, at least, by the provisions of Section 5 in reviewing the laws enacted by the legislature of the state.
O'CONNOR: I mean, it had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election.
TRIBE: Well, Justice O'Connor, I certainly agree that if the Florida Supreme Court adverted to 3 U.S.C., Section 5, and, as Justice Kennedy asked earlier, got it wrong, then there would be a federal issue for this court.
O'CONNOR: Well, is there a federal issue if the court doesn't...
TRIBE: No. The answer is no.
O'CONNOR: ... advert to it.
TRIBE: It would be nice. But remember, it is...
O'CONNOR: ... because of Article II, which, after all, does give the legislature plenary power and must have wanted -- it must have wanted to have the laws in place so that it wasn't -- so that Florida wouldn't risk losing its electoral votes. I mean, the legislature had to want that...
TRIBE: I'm sure...
O'CONNOR: ... by enacting laws. And perhaps the Florida court has to be aware of the consequences to the state of changing the rules.
TRIBE: But Justice O'Connor, under Article II, Section 1, Clause 2, the authority to regulate the manner of the choice of electors is vested in the state legislature. If the state legislature decides from the beginning to exercise that authority by instructing the various institutions -- certainly not just the courts, the attorney general, the secretary of state -- in very particular ways, to exercise their roles in the process, with a specific view...
O'CONNOR: Well, it certainly did by enacting that date. "Here is the certification date." How could it have been clearer?
TRIBE: Well, I suppose it could be a violation of Florida law if the enactment of that date is construed as a direction to a particular authority, like the secretary of state or the state's highest court, to take certain actions in order to get the benefit of this bonus.
TRIBE: But only a violation of federal law. I don't see how you get a...
REHNQUIST: What Florida law would that...
TRIBE: Of state law, I'm sorry.
REHNQUIST: Are you talking about the Florida constitution?
TRIBE: Well, it might have been a violation...
REHNQUIST: But then you'll run into the Blacker case.
TRIBE: But it seems to me that the federal question, which is really what brings us here, can only arise if 3 U.S.C., Section 5 is something other than what Mr. Olson called it, "an invitation to the state."
REHNQUIST: But it can also arise under the section of the Constitution that was construed in Blacker. That's quite independent of 3 U.S.C.
TRIBE: But, sir, if one concluded that Florida had violated its duty to empower the legislature to take these regulatory steps...
REHNQUIST: If one concluded that the Florida legislature had relied on the state constitution in a way that the Blacker case says it may not in construing the statute.
TRIBE: I think that's possible, Mr. Chief Justice. But the judgment before you doesn't provide even an inkling, I think, of proof about those matters. All we have...
REHNQUIST: That's what we've been arguing here, as to whether it doesn't.
TRIBE: Well, I think we've been arguing several interrelated things. One of the things we've been arguing is whether one could in good faith reach the conclusion, novel as it was in some respects, as Justice O'Connor points out, that the Florida Supreme Court reached.
TRIBE: Now, if the answer to that question was no, perhaps if there were a due process issue in this case, and if someone had a protectable interest that was injured, that would be relevant. But the federal question that makes that relevant here would arise only if one forgot that 3 U.S.C., Section 5 is all carrot and no stick.
REHNQUIST: No. I don't agree with you on that, Mr. Tribe. It seems to me a federal question arises if the Florida Supreme Court in its opinion rather clearly says that we're using the Florida Constitution to reach the result we reach in construing the statute. And I think Blacker is a strong argument they can't do that.
TRIBE: Well, that they can never advert to their own constitution? I don't think so.
REHNQUIST: Well, certainly it stands to the proposition you couldn't do it then, in those circumstances.
TRIBE: What would it be, I wonder, about the circumstances here that would say that in reconciling these provisions -- which at first we were told were mandatory, then we were told, they're not mandatory, they give discretion, and now we're told that the real issue is simply, did the court in putting a boundary on that discretion do something federally impermissible -- what would it be about that sequence that would implicate...
REHNQUIST: Well, you know, if the Supreme Court of Florida simply said in its opinion, "Look, these sections of the statute conflict. We've got to, under our traditional principles, resolve it one way or the other."
REHNQUIST: But it doesn't say that. It goes on to say, "Look, in the light of the Florida constitution and the general rights conferred there, we're construing it this way."
TRIBE: It seems to me that as a tiebreaker, as a way of shedding light on the provisions that are in conflict, so long as it's not done in a way that conflicts with a federal mandate, they're not violating any...
SCALIA: Mr. Tribe, I don't agree with that. I don't think that the Florida Supreme Court used the Florida constitution as a tool of interpretation of this statute.
If you look at this opinion, it separated it to include various sections, issues, legal -- four, a legal opinion of the division of elections; five, the applicable law; VI, statutory ambiguity. And that's -- and, seven, legislative intent. That's the section where they construe the statute in view of these ambiguities and so forth.
That sections concludes, under this statutory scheme, the county canvassing boards are required to submit their returns to the department by 5 p.m. of the seventh day following the election. The statutes make no provision for exceptions following a manual recount.
If a board fails to meet the deadline, the secretary is not required to ignore the county's returns, but, rather, is permitted to ignore the returns within the parameters of this statutory scheme.
So what the statutory interpretation gives you is a firm determination date of December 7 and discretion in the secretary.
SCALIA: The opinion continues, "VIII. The right to vote. The text of our Florida Constitution begins with a declaration of rights." And it goes on to say that to the extent the legislature may enact laws regulating the electoral process, those laws are valid only if they impose no, quote, "unreasonable or unnecessary," close quote, restraints on the rights of suffrage contained in the Constitution.
In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent. I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II, because, in fact, there is no right of suffrage under Article II. There's a right of suffrage in voting for the legislature, but Article II makes it very clear that the legislature can, itself, appoint the electors.
TRIBE: But it seems to me that it's already been conceded that the legislature can delegate that function to the judiciary. And when Justice Kennedy asked if it can delegate the function to the judiciary, that is what McPherson seems to suggest. Then can it not delegate something less? That is, can it not give the judiciary a role of the sort that it's exercising here?
After all, the legislature -- and this is important, it's not true in every state -- the legislature itself repromulgates the Constitution every several years, and then it's ratified by the people.
(RETRANSMITTED PER SUBSCRIBER REQUEST)
SOUTER: Isn't there another way of looking at what the Florida court did, and that was in effect to apply the statute to the interpretive criterion, that where there is any discretion for interpretation, an unconstitutional result should be avoided? And because you have here a statute, as I understand it, that regulates both federal and state recounts, that much is, I think, is clear...
SOUTER: ... the only way to avoid an unconstitutional meaning of the statute, so far as Florida law was concerned, was to get into this constitutional concern about preserving the franchise, and that because the legislature intended one standard to cover both federal and state recounts, it therefore is valid to consider the state constitution in order to derive a general meaning that will apply to a federal as well as a state election? Can you look at it that way?
TRIBE: I fully accept that view, Justice Souter. I would supplement it with one important point. We're not dealing here with a decision in which within the gray area where a court could reasonable go either way this court simply said, "We don't care about the federal considerations." It in particular exercised its equitable powers in favor of the petitioner in order to facilitate meeting the December 12 deadline while still being able to have electoral contests.
TRIBE: That December 12 deadline comes purely from federal law.
BREYER: Can you just go back to your characterization of the opinion? I think we'd all agree that, given that the legislature has to select the manner, a state can't say, "Our Constitution selects the electors," I suppose...
TRIBE: That's right.
BREYER: The thinking of this opinion: Suppose the court had said, "Look, we reach our result based on the canons we found in Blackstone." Now nobody's going to say they said Blackstone's selecting the electors, right?
TRIBE: I think that...
BREYER: All right. Now, suppose they said we reached this decision based on the values found in the Constitution. That would be like Blackstone.
TRIBE: I think that's right.
BREYER: Suppose they say, "Well, the legislature wants us to do X, but our constitution requires to do not X." That might be different.
TRIBE: It might be different...
BREYER: Now, what is it that they've done here?
TRIBE: I certainly don't think they've done the third. They did not say -- I think when they underscored the presence of language that Justice Scalia read about what's mandatory, they were simply being candid about the fact that they were acting in conflict with one part of the statute but the...
SCALIA: In a separate section of the opinion, Professor Tribe, that is entitled, "The right to vote." It is after the legislative intent section, and it says categorically, "To the extent the legislature may enact laws, they're invalid."
And I suggest perhaps the reason that the court did it is that however expansive the doctrine of constitutional doubt is, there is no way that it can make December 7 mean anything except December 7.
SCALIA: I mean, they were almost constrained to use the Constitution to override the firm deadline that was explicitly set forth in...
TRIBE: Justice Scalia, both you and I think at one point Justice O'Connor, in pointing to the particular dates that came out differently under the approach that this court used from what would have emerged if they had looked only at 102.111, are making a mistake, with all respect.
It's not as though this court promulgated a rule for the future about December 7: "In commemoration of Pearl Harbor, we say December 7 is the day." No. What they did was say, "We have to find a date which will accommodate these conflicting statutory provisions and policies in light of what our Constitution tells us."
And it would amaze -- I would think amaze this court to see anyone saying that because an opinion was organized under Roman numeral headings...
SCALIA: And Professor Tribe...
TRIBE: ... in such a way that...
SCALIA: Isn't it also true, Professor Tribe, that Part 8 of the opinion relies on four things: the Florida Constitution, earlier Florida decision-construing statutes, an Illinois case and a federal case...
SCALIA: ... but not just the Illinois...
TRIBE: That's right.
SCALIA: ... their Constitution.
TRIBE: And surely if...
SOUTER: And is it also true -- is it also true that the inability to use Section 7 depended in the Florida Supreme Court's reasoning not on the existence of the Constitution as the sole reason, but on the inability to make the December 7 date final and provide for the recounts within the times in which recounts can be called for?
What I'm saying is, didn't they say that the date of the 7th cannot stand, not because of the constitution alone, but because there are other provisions in the statute that cannot be accommodated with sections -- with the seventh day?
TRIBE: And I guess to take a...
GINSBURG: And they said that twice. And I think that's critical, if you add to that, that we read a decision of a state court in the light most favorable to that court and not in the light least favorable.
I suppose there would be a possibility for this court to remand for clarification. But if there's two readings, one that's questionable and one that isn't, all of our decisions suggest that we read the one...
TRIBE: Especially, I think, Justice Ginsburg, when the odds that these conceivable federal problems are indispensable to this result are overwhelmingly negative. That is, it's not as though one cannot explain the result this court reached in the most conventional, standard ways.
TRIBE: And the fact that...
SCALIA: Professor Tribe, I would feel much better about that resolution if you could give me one sentence in the opinion that supports the second of these supposed alternative readings, that supports the proposition that the Florida Supreme Court was using the constitutional right to vote provisions as an interpretive tool to determine what the statute meant. I can't find a single sentence to that.
TRIBE: I think, Justice Scalia, I can do a little better than find a sentence. The entire structure of that part of the opinion, as Justice Stevens points out, would be incoherent if the Constitution was decisive. That is the highest law in Florida. Why bother with all the rest if that is anything more than an interpretive guide?
SCALIA: You would bother with it because, having decided very clearly what the statute requires, and finding no way to get around the firm date set, you say the reason it's bad is because of the state Constitution. That's how it's written. Now they might have...
TRIBE: No, but, Justice Scalia...
SCALIA: ... tried it another way, but its seems to me they didn't.
TRIBE: But they also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, but in 1989 they wrote a provision that unmistakably created discretion.
And we haven't yet discussed this provision also created, the provision that when the returns are filed late, it doesn't say throw them away, it doesn't say give them back, it says fine every member of the canvassing board $200 a day.
TRIBE: That would be a totally crazy provision.
As this opinion understands, if you are not to reach a reconciliation of this sort, this result was over-determined under Florida law. It might be true that they said the Constitution also points this way, but there isn't a sentence in the opinion that suggests that without that constitutional argument the result would have to be different.
BREYER: What is the November 26 date? Is that the seven-day date rule or is that some kind of date that tries to reconcile the ultimate point, after which the secretary, in exercising her discretion, no longer has to accept the late returns? Did it move the date from the statue, has it created a new date about this discretion, what it is?
TRIBE: Well, it looks to me like an exercise -- the chancellor's foot, as it were, in this particular case. When I date, November 26, I couldn't come up with an algorithm or a formula that would generate it, but the court was confronted with the task of drawing, as this court has recognized, what are sometimes inevitably arbitrary lines. That is, it said it was not consistent with the overall scheme of the statute to require these recounts, which have just begun to terminate.
TRIBE: That truly would be a promise to the ear to be broken to the hope, like a munificent bequest, just as Jackson said in his pauper's will.
KENNEDY: If the legislature...
TRIBE: Why tell people to count if you won't count it? And...
KENNEDY: If the legislature had jumped into the breach and said this same thing, would that be a new statute or new enactment under...
TRIBE: I honestly, Justice Kennedy, am not sure, because the language that I quoted from 3 U.S.C., Section 5 focuses on the institutional dispute resolution arrangement that is in place. And if you look at the legislative history in the decade of hearings in the period after the Hayes-Tilden debacle, that history focused on the importance of having a fixed tribunal which you could look to, rather than one cooked up at the last moment.
And, indeed, what they seemed to be most afraid of was the political entry of legislators and executives at the 11th hour. There was no focus at all...
KENNEDY: But, are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment?
TRIBE: Well, there certainly are no cases on the subject. The language gives me very little guidance. Since the section is addressed to Congress, neither my opinion about it nor the court's opinion is necessarily...
KENNEDY: But you don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee?
TRIBE: I think I would advise the Congress that it is not a new enactment, that it is an entirely reasonable construction of an existing enactment as to which the only alternative construction is to make it self-destruct, and to make it internally contradictory. And I honestly don't think, if I were advising Congress, that I would say it's a new construction.
I do think also that some people reasonably could argue the contrary.
TRIBE: And I guess I think that this language should be interpreted, whether by a court or by Congress, in a way that gives some deference to the state government and its organs. And I think any degree of deference here is inconsistent with saying that there's been a federal violation, especially when -- I want to remind us all about the context. Are we going to say that this paragraph in this opinion says that Florida is in breach of Article II of the Constitution, in general? Hard to say.
O'CONNOR: Well, there should, perhaps, be some deference, though, to the concept expressed in Article II that it is the authority of the legislature, and some special concern about what the legislature may have said.
TRIBE: Yes, but if the legislature is entirely happy not to completely delegate this power to the courts, which Article II would permit, but rather to allow the courts to exercise a somewhat more flexible role than the one that the critic of this opinion would be embracing, that's within the power of the legislature of Florida.
O'CONNOR: Yes, but who would have thought that the legislature was leaving open the date, or changed by the court? Who would've thought that?
TRIBE: Anyone. Just read the statute in 1989, and it says "may." It says she may reject the late returns.
BREYER: But that doesn't change the -- that's not the date.
TRIBE: Yes, but the date is the one from which the "may" is measured. That is, you're supposed to get it in by seven days later. What if you don't?
TRIBE: Well, if you don't, she may, or she may not, reject them.
Now, anybody reading that would realize that's a deadline only in a kind of sense, it's not a real deadline. She's got discretion. Certainly if there's an act of God of the sort -- was it Justice Stevens asked about...
O'CONNOR: Yes, well, then the secretary came in and argued and said yes, her discretion was if it were an act of God or a machine breakdown, she would exercise her discretion.
TRIBE: And it's an entire normal exercise of judicial interpretation to say that this statute is not limited to God and machines, that...
SCALIA: Professor Tribe, can I ask you why you think the Florida legislature delegated to the Florida Supreme Court the authority to interpose the Florida constitution? I mean, maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts...
... but have certainly never invited it.
TRIBE: Well, I'd have to say my experience parallels that.
SCALIA: But what makes you think the Florida legislature affirmatively invited the Florida Supreme Court?
TRIBE: The odd thing is that the system in Florida involves their own re-promulgation of the constitution.
TRIBE: And their scheme, with respect to the resolution, of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them. Those are to be resolved exclusively in the House and Senate, and all others are to be resolved in the courts under a standard that they understandably...
SCALIA: That they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to federal elections. They need not be, because the Florida constitution cannot affect it. And I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida constitution between what they enacted by statute and the ultimate result of the election.
TRIBE: Well, I suppose if they were at all farsighted, if they looked at their own work and saw how self-contradictory it was, they might say we would want someone with the authority to reconcile these provisions to do so in the light not only of the literal language, but of the fact that they're dealing with something very important, the franchise.
The disenfranchising people, which is what this all about, disenfranchising people isn't very nice.
SOUTER: But wouldn't you...
TRIBE: They violate the federal as well as the state constitution.
SOUTER: But wouldn't Justice Scalia's suggestion be a stronger suggestion if they had dealt by this statute only with federal elections or only with the presidential election as opposed to dealing with both state and federal in the same statute?
TRIBE: Well, it's not uncommon, given the convenience of having similar regulations apply on Election Day, not to bifurcate. Oregon v. Mitchell, after all, confronted the nation with a problem...
SOUTER: Right, but when they don't bifurcate, it's reasonable to suppose that they expect their statute to be construed, number one, as one statute, not as having different dates for state and federal; and number two, to be construed, so far as the state concern arises, in accordance with the state Constitution. And if that is so, then the result is, they would expect a state constitutional concern to inform their interpretation of a statute which ultimately governs federal as well as state.
TRIBE: And they would recognize that when the federal election involves the presidency of the United States, with the special problems of the Elector College deadline, that they might emerge with rather different deadlines and to some extent a different approach for the two elections.
SCALIA: But there are already different deadlines for federal electors -- aren't there? -- because of the federal statute concerning overseas ballots?
TRIBE: Yes, that's entirely true.
SCALIA: So, I mean, that's going to be different anyway.
TRIBE: And there's an...
SCALIA: But that's different as a result of federal law, isn't it?
TRIBE: Well, there is a consent decree arising out of federal law. There was...
SCALIA: But it wasn't the legislature's choice. It was Congress' choice that required that.
TRIBE: That's right. In 1986 there was a congressional statute that already created that difference.
GINSBURG: Mr. Tribe, before you finish, I would like to know whether you are conceding, because some of the things you said sound like maybe you are, that the Florida legislature, under Article II, Section 1, could say we don't want any judicial review of anything about the manner in which we say electors should be appointed. Does the Florida legislature have the authority to cut out judicial review?
TRIBE: No, no, I certainly don't think so. They cut out judicial review then even this may not be entirely consistent with the Florida Constitution. They cut out judicial review for the election of their own members in the House and Senate. I certainly don't think that it would have the authority to expel the federal judiciary from the election of senators or...
GINSBURG: I mean the state judiciary. When it says, "Each state shall appoint electors in such manner as the legislature thereof may direct," may the legislature direct as to the Florida Supreme Court, and Florida Supreme Court, we don't want you to review whatever we do?
TRIBE: I'm not actually clear about this, Justice Ginsburg. I've thought about it a lot. The general principle is that the Constitution takes the state government and its arrangement as it finds it, and that when the legislature is identified, that really does not mean the legislature has some specialized capacity, as with Article V.
TRIBE: Now, if that's the case, and if it's therefore assumed that the legislature is surrounded with both executive and judicial authority, then a decision by the legislature to completely exclude the judiciary from any possible role -- the state judiciary -- might be inconsistent with the underlying meaning of Article II itself.
GINSBURG: Well, could the state legislature at least now say, "In light of all this confusion, we enact a law today, saying this is the way electors will be selected"? Couldn't -- is that open to the legislature now?
TRIBE: I'm not sure. That's very much like my inability to answer because I honestly have not reached a conclusion that it's not presented by this case. I don't know whether the legislature could do the further thing, that's naming electors. And if it...
REHNQUIST: Thank you, Mr. Tribe.
TRIBE: Thank you, Chief Justice.
REHNQUIST: Mr. Olson, you have four minutes remaining.
OLSON: Thank you, Mr. Chief Justice.
May it please the court, it seems to me that it's very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida Constitution, in their view -- in that court's view, is trumping everything else.
OLSON: The second paragraph of the conclusion says, "Because the right to vote is the preeminent right in the declaration of rights of the Florida Constitution" and so forth. This opinion is full of language...
BREYER: Wouldn't they -- I suppose they'd referred to the Declaration of the Rights of Man, 1789, the French Revolution. I mean the right to vote is a value in the Constitution. Are they actually saying -- I didn't see it.
OLSON: They're saying...
BREYER: The statute means one thing, but the statute's unconstitutional because the constitution of Florida says the opposite? I didn't see that.
OLSON: I think that the only reasonable, fair reading of the decision is that the Florida Supreme Court felt that -- and it says it over and over again -- that we are going to attempt to discern the will of the people, the will of the electorate and discern and enhance in whatever way we possible can the right to vote.
And because of that, these provisions of the statute, which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14 deadline, is a part of a composite package. There's one week for a protest and certain recounts to the extent that they can be done, and there are four weeks for contests.
When the Florida Supreme Court truncated -- when the Florida Supreme Court expanded the protest period from seven days to 19 days, it necessarily limited the contest period to a shorter period of time. It changed the discretion. It allowed certain things to occur that couldn't have occurred. And it justifies all of those things on the grounds that the Florida Supreme Court -- the Florida Constitution trumps those legislative concerns.
OLSON: And that's why it said we are not going to be dissuaded by hypertechnical statutory considerations. So the court was doing what this court said in the McPherson v. Blacker case that it cannot do, is allow itself to insert itself or the Florida constitution above what is required by Article II, Section 1 of the Constitution.
It also seems to me quite evident, in response to what Justice Kennedy was asking earlier, that there was concern about the federal statutory provision. The language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision. And there's a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5, and it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the federal electoral process.
The court was assuming, it seems to me, that it did not -- was not conflicted, the decision it was rendering was not going to cause a conflict with the federal statutory scheme, and it was, we submit, in error in that regard.
So to sum up, with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida constitution.
OLSON: By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title 3 and it has brought about precisely the circumstances that Section 5 -- Section 3, Title 3, was designed to avoid.
GINSBURG: If I had looked in the conclusion, the paragraph on page 37-A, with a summarized -- what they said -- there's nothing there about the Florida constitution, it's only about the Florida election code. They say they must construe the Florida election code as a whole and they point out the provisions in conflict. There's not one word in that paragraph that says anything about the Florida.
OLSON: The very second paragraph refers to the Florida constitution and the rights to vote, page 36-A of the appendix to the petition.
REHNQUIST: Thank you, Mr. Olson.
The case is submitted.
BOSLEY: The honorable court is now adjourned until Monday next at 10:00.